Risk Management and Medical Liability

Section Twelve: The National Practitioner Data Bank

The National Practitioner Data Bank (NPDB), which opened in 1990, serves as a clearinghouse to collect and release information concerning payments made on behalf of physicians, dentists, and other licensed health care practitioners as a result of malpractice actions and claims. In addition, it maintains information concerning certain adverse actions regarding the licenses and clinical privileges of physicians and dentists. Reports to the NPDB concerning malpractice claims or suits are only made if a payment is made, not merely if a tort claim or suit is filed, and the submitted report must be made “for the benefit of” (on behalf of) an individual provider, not an institution or health care program.

The NPDB Law

The mandate for the NPDB was contained in Public Law (P.L.) 99-660, the Health Care Quality Improvement Act of 1986. There were several concerns and issues that the Congress was attempting to address in the framing of this law: there was an increasing number of malpractice suits against health care providers, particularly physicians; there were reports of physicians with credentials problems moving from state to state to avoid detection; peer review of quality of care was being threatened by the fear of suit against individuals performing the peer review; and there was a general concern for the quality of health care being provided in this country.

Note: The Health Insurance Portability and Accountability Act of 1996 further authorized the establishment of a second and somewhat related national data bank, the Healthcare Integrity and Protection Data Bank (HIPDB). The HIPDB is a national collection program for the reporting and disclosure of certain final adverse actions taken against health care practitioners, providers, and suppliers with respect to fraud and abuse in the health insurance and health care delivery industries. The HIPDB is now combined with the NPDB, creating the rather ominous abbreviation NPDB-HIPDB. Since this Manual does not deal with fraud and abuse, the HIPDB will not be further mentioned.

Part A of P.L. 99-660 provides for professional immunity for peer review activities when they are taken in good faith to promote quality health care. Even though Indian Health Service (IHS) medical staff members are not individually liable for peer review activities as part of their employment by the IHS or a Tribe, it is essential for each medical staff to have an adequate notice and hearing process in the medical staff bylaws. This will provide a structure within which the medical staff will function should a practitioner challenge the denial or reduction of medical staff privileges, both of which are reportable to the NPDB if based on competence or conduct. Because these actions are reportable, they will likely be challenged, thereby requiring a workable and legally defendable notice and hearing process to protect both the Agency and the individual practitioners.

Part B of the law requires reports to the NPDB for any payment, including settlements, made as a result of a malpractice claim or suit and for adverse actions against the clinical privileges, state licensure, or professional society membership of physicians and dentists.

Querying the NPDB is also required when a hospital is considering an applicant for medical staff appointment and/or clinical privileges, and every two years for those on the medical staff and/or with privileges. An attorney who has filed a medical malpractice action or claim against a hospital may query the NPDB for information regarding a specific physician, dentist, or other health care practitioner who is also named in the action. However, this information will only be disclosed by the NPDB if the attorney submits evidence that the hospital failed to request information from the NPDB, as required by law. The information may be used solely with respect to malpractice action against the hospital named in the suit. Also of note, any information reported to the NPDB goes into a 30 day suspense file before it is placed in the computer. During this time, both the reporting institution and the practitioner in the report will receive verification documents in order to review the information that is to be entered in the NPDB. No information becomes available for querying before the practitioner has been notified.

The NPDB and the Federal Sector: The law establishing the NPDB did not require that federal programs be included in reporting and querying requirements. However, the Department of Defense, the Department of Veterans Affairs, and the Department of Health and Human Services (HHS) all stated that they would participate fully in both NPDB reporting and querying. Therefore, the rules and regulations of the NPDB published in the Federal Register (and found on the NPDB website) that govern how individual practitioners are to be reported do not necessarily apply to the federal sector. In regards to practitioners working for operating divisions of the HHS (and Tribal organizations), the policy and procedure for reporting to the NPDB can be found in a 1990 memorandum signed by the then Assistant Secretary of Health. This policy was being reviewed for possible revisions during early 2006. Separate policies deal with reporting adverse actions and querying.

National Practitioner Data Bank Reporting—Agency Experience: From 1991 until mid-1997, the HHS Claims Office was responsible for submitting reports to the NPDB for the Department. Approximately ninety-five reports were submitted during this time period. A small portion of these reports involved cases where it was determined that the standard of care had been met; in accordance with Department policy, a statement was added to each of these reports that the “standard of care was met.” During this time period, the IHS had no input into the information submitted to the NPDB. In 1997, the submission of NPDB reports by the Claims Office was interrupted for a variety of reasons, but the responsibility to prepare and submit reports was not transferred to another Department entity. Therefore, for more than seven subsequent years, very few providers’ names from paid IHS and Tribal cases were submitted to the NPDB.

In 2003, the Office of the Inspector General (OIG), HHS, determined that the various operating divisions of HHS that had the responsibility of providing health care were no longer following Department policy for NPDB reporting. A long series of discussions and meetings transpired over the next year and a half. Finally, the OIG made a final recommendation that the IHS (and other involved operating divisions of HHS) formulate a corrective action plan to reestablish a mechanism to achieve ongoing NPDB reporting, including the elimination of the backlog of cases. In early 2005, the IHS RM Program began this required process.

The IHS first dealt with the backlog of reporting, including some cases that date back to care provided in the early 1990s. The IHS has been submitting reports only on cases where it was determined by the HHS Medical Claims Review Panel (Panel) that the standard of care was not met. As of April 2006, no reports have been submitted by the IHS for any case where it was determined by the Panel that the standard of care was met, or that the adverse outcome was a result of a “system failure.”

To prepare a NPDB report, mandatory provider information, payment information, and clinical information has to be identified. Often, it is necessary to consult with the service unit risk manager, credentials coordinator, or clinical director to collect missing provider information. Before a report is submitted, the IHS makes every possible attempt to first notify the provider about this pending administrative action, even when the providers have long left governmental or Tribal employment.1 Either by letter or phone, the provider is notified about the situation. If the provider had never been offered the opportunity to discuss their involvement in the case, or if they wish reconsideration, then they are afforded the opportunity to submit an appeal to the Panel. When necessary, attempts are made to retrieve the medical records. Provider appeals are taken back to the Panel only when new or clarified information is evident. The Panel then makes a determination whether to sustain or overrule their original decision regarding the standard of care, system issues, or provider(s) of record, whichever is being contested. The decision of the Panel regarding the appeal is final.

Once a NPDB report has been submitted, there are additional processes available to the reported individual in regards to dispute resolution. Also, the provider has the opportunity to electronically submit a “subject statement” that will be added to the NPDB report. Many providers will submit additional information further explaining their decision-making or actions relevant to the case in hand. Once reported, an individual practitioner is responsible for disclosing this information to the credentialing office of the facility or facilities where they practice, and to their State licensing board(s).

Issues Regarding NPDB Reporting:

• Particularly for older cases, it was a common finding that practitioners were either altogether unaware that a claim had been filed, or they were never offered the opportunity to participate in the claim review process. The IHS RM Program has taken steps to ensure that all providers are now given every opportunity to explain to the Panel their degree of involvement in a case.
• Also in the past, practitioners involved in tort claims were often not kept abreast of the progress of a tort claim as it worked its way through the OGC, Panel, and DOJ. This process often takes years to come to a conclusion. The IHS RM Program has made a renewed effort to maintain contact with practitioners and the IHS and Tribal facilities during the various stages of claim and suit negotiations.
• The IHS cannot name to the NPDB individuals who are not covered under the Federal Tort Claims Act. Therefore, non-personal services contractors working in IHS or Tribal facilities cannot be considered for NPDB reporting, even when the care they provided was clearly below the standard of care and was responsible for the adverse outcome. These individuals must be covered by their own medical malpractice insurance policies and are subject to be sued individually. If the independent contractor’s malpractice insurance company makes a payment on behalf of its policy holder, it is that company’s responsibility to submit a NPDB report.
• Not uncommonly, providers and service unit officials do not understand the role that the Panel’s decision has in the overall claim review process. There is confusion over the roles of the OGC, the DOJ, and the Panel in determining which providers are named to the NPDB. It is important to realize that the OGC and the DOJ are defending the Federal Government and are not involved in NPDB reporting decisions. In accordance with HHS policy, the MCRP is the sole entity with the responsibility for identifying which practitioners will be named to the NPDB for a particular claim or suit.

Footnote

1 Neither the HHS reporting policy nor the NPDB regulations require practitioner notification before a payment report is submitted.

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